It has become increasingly common for police, in the course of their investigations, to request individuals provide access to their mobile phones. They may ask a suspect to hand over his or her phone and provide the password. They may even ask a bystander, who could have evidence contained on their phone, to grant access.

However, while there is no question that the police have broad powers to search and seize property in NSW, particularly on ‘reasonable suspicion’ of commission of an offence or after a valid arrest, these powers are not unfettered.

Police do not have the express power to search the contents of a mobile phone, nor any express power to require a suspect to provide access to a phone that is password protected. As a result, the police must rely on more general powers to assert this right.

In the absence of any clear case law authority in NSW, it would appear that there is room for argument about the scope of police powers. Given the significant amount of highly sensitive personal information likely to be contained on a person’s mobile phone it is, arguably, more akin to the search of a person’s premises rather than the search of pockets or a handbag, generally accepted as permitted as part of a personal search. As a result, different principles should apply, as they do to the search of a person’s home.

The NSW Police rely on three main provisions when conducting personal searches.

Pre-arrest search without a warrant

First is the power to search without a warrant in Law Enforcement Powers and Responsibilities Act 2002 (NSW) (LEPRA) s 21. Under this provision, a police officer may search ‘a person and anything in the possession of or under control of the person, if the police officer suspects on reasonable grounds’ that (relevantly):

The police officer also has the power to ‘seize and detain’ such property (LEPRA       s 21(2)). A police officer exercising his or her powers, must provide their name, evidence that he or she is a police officer and the reason for the exercise of the power (LEPRA s 202(1)). Failure to comply with a police direction is not an offence unless the officer has met these requirements (LEPRA s 204B).

Post-arrest search while in police custody

Second is the power to search on arrest in LEPRA s 27. This gives the police the power to search a person after a valid arrest [for the requirements of which see LEPRA s 99: ‘if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything’ (relevantly):

In addition, the police have the power to search a person who is in custody after their arrest and ‘seize and detain’ anything found in that search (LEPRA s 28A). A person taken into police custody must be cautioned and has the right to contact a lawyer (LEPRA ss 122 – 123).

It is worth noting that there is no specific reference to a power to search the contents of a mobile phone in either of these provisions, nor to require a person to provide a password. However, unlike s 27, s 21 does permit the police in those circumstances to search ‘anything in the possession of or under the control’ of the person, which could extend to a mobile phone. In addition, while conducting a lawful search, the police do have the power to ‘examine anything in the possession of the person’ (LEPRA s 30(c)). It could be argued that the powers do not extend beyond seizing and detaining the phone itself. In the absence of an express power to search the contents or to require the suspect to provide a password, arguably, if the police want to search the contents of the phone without consent they should apply for a warrant under LEPRA Part 5.

Searches carried out with consent

In practice, the police regularly request individuals suspected of having committed an offence to provide access to the contents of their mobile phone. Where this is done with consent of the owner, then the police officer does have the power to carry out the search and ‘the purpose of the search is the purpose for which the police officer obtained consent to search’ (LEPRA ss 34A and 29(2)(a)), ie it is limited to that purpose and does not extend to a ‘fishing expedition’. To obtain consent, the police officer must provide the person with evidence that he or she is a police officer and specify the purpose of the search in advance.

Where consent is refused, however, police may nevertheless proceed upon the basis that they have the power to require access to the contents, including to any relevant password. However, as explained above, this depends on a broad reading of the power to search ‘anything in the possession or under control of the person’ (LEPRA s 21(1)) and the ancillary power to ‘examine anything in the possession of the person’ under LEPRA s 30(c). Even a broad reading of these powers would, arguably, not support anything beyond a search of the contents of the data stored on the phone itself, as opposed to downloading data to the phone from an Internet site such as Facebook or Instagram.

Failure to comply with a lawful police direction ‘without reasonable excuse’ may be an offence and subject to a penalty notice (LEPRA s 199, reg 53). Alternatively, if a person does not comply with a request to provide a password, the police could potentially argue that the person is hindering the police in the execution of their duty (Crimes Act 1900 (NSW) s 546C).

The principle of legality

However, such a broad reading of the powers in LEPRA ss 21(1) and 30(c), is, arguably, contrary to the principle of legality, which requires criminal statutes to be interpreted strictly in favour of the accused. It is presumed by the courts that Parliament did not to intend to abrogate our fundamental rights and freedoms unless expressly stated in the statute. The right to privacy, freedom from arbitrary search and seizure, and the right to silence and privilege against self-incrimination, are all such fundamental freedoms recognised at common law. In Coco v The Queen, the High Court said:

‘The courts should not impute to the legislature an intention tointerfere with fundamental rights. Such an intention must be clearlymanifested by unmistakable and unambiguous language. General wordswill rarely be sufficient for that purpose if they do not specificallydeal with the question because, in the context in which they appear,they will often be ambiguous on the aspect of interference withfundamental rights … .’ (per Mason CJ, Brennan, Gaudron and McHugh JJ at [10]).

Unfortunately, the Court of Criminal Appeal in NSW is yet to provide a definitive answer to the question of whether, or in what circumstances, the police have the power to search the contents of a mobile phone without a warrant or to require a person to provide his or her password. However, a recent Queensland Supreme Court decision, on similar legislative provisions to those outlined above, suggests that privacy rights may be considered by the courts in interpretation of the NSW provisions.

Queensland cases

In R v N [2015] QSC 91 the Queensland police attended a city hotel in response to a noise complaint and an assertion that drugs were being used by the occupants. On arrival, the police proceeded to conduct three separate searches. N was detained and strip searched for drugs, of which none were found. Then her handbag was searched, revealing $305 and an iPhone. Suspecting that the $305 related to drug supply, the police then searched the phone and found some incriminating text messages indicating drug related activities. In coming to his decision that the third search was not authorised by the Police Powers and Responsibilities Act 2000 (Qld) (PPRA) s 29 (cast in similar terms to LEPRA s 21), Carmody CJ held that the location of $305 was not a sufficient basis to form a ‘reasonable suspicion’ of drug related activities, as required to enliven the power to search. As a result, it was held that the search of the phone was unlawful and the evidence obtained should be excluded under the discretion to exclude illegally or improperly obtained evidence. In reaching this decision, Carmody CJ specifically discussed the importance of the right to privacy, stating that (at [55]):

Privacy rights are important too. They must not be disregarded without good cause or for compelling reason. We must consider the two rival objects of desire – public and community safety, on the one hand, and unconstrained State coercive law enforcement, on the other. 

In addition, Carmody CJ reviewed the United States case of Riley v California, 573 US 373 (2014), which held that the search and seizure of the contents of a mobile phone without a warrant following an arrest was unconstitutional (unlike the Australian Constitution, which is silent on this issue, the 4th amendment to the US Constitution prohibits ‘unreasonable searches and seizures’). He specifically noted, with approval, that in reaching its decision in that case (at [61]):

… the Court accepted that because of their large storage capacity and broader privacy implications, iPhones differ in both a quantitative and qualitative sense from other documentary records.

Noting that in Riley v California, ‘the general incident to arrest power was considered too broad and invasive to justify searching a mobile phone’ (at [62]), he found that, similarly in Queensland, the police would have to justify such a search by reference to some concern regarding imminent destruction of evidence (under PPRA s 160), otherwise they should obtain a search warrant.

In an earlier Queensland case of R v Peirson [2014] QSC 134, the Queensland Supreme Court had accepted that the search of an accused who was seen getting out of a taxi holding alcohol (an offence) and indicating signs of being under the influence of another drug, was lawful under PPRA ss 29 and 30 (which are similar but not identical to LEPRA s 21). This search extended to reviewing the contents of his mobile phone and the evidence obtained was, therefore, admissible.

Conclusion

So, ultimately, an important consideration if faced with a request from a police officer to search your mobile phone, is that they do not have a general power to do so, absent a valid power to search or following a valid arrest (as outlined above). While you may consent to such a search, consent must be expressly obtained by the police officer prior to the search and then the power to search is limited to ‘the purpose for which the police officer obtained consent’, which must be made clear to you prior to consent being given. If you do not consent and the police go ahead and search the contents of your phone regardless, then, if the search is later found to be unlawful, any evidence the police obtain as a result of the search may be excluded from any subsequent trial.

Sources and further references:

Andrew Hemming, Francine Feld and Thalia Anthony, Criminal Procedure in Australia (LexisNexis, 2nd ed, 2019).

Matthew Raj and Russ Marshall, ‘Examining the Legitimacy of Police Powers to Search Portable Electronic Devices in Queensland’ 38(1) University of Queensland Law Journal 99.

Jane Sanders, ‘Police powers to search and seize mobile phones’ The Shopfront Youth Legal Centre (August 2017).

Meth

According to a recent report published by the Australian Institute of Criminology (AIC) the Covid-19 pandemic has created major disruptions in the methamphetamine market across Australia.

The report attributes this turmoil to government restrictions on international passengers and domestic lockdowns across the country.

Australian capital cities have experienced both an overall decrease in methamphetamine use as well as a significant reduction in its quality.

According to the report there has been a significant reduction in methamphetamine’s availability, its purity and the number of people who are selling the drug.

Despite these reductions the demand for methamphetamine remains high and several major Australian cities have experienced a significant increase in the price of the illicit drug.

How much does methamphetamine typically cost for the consumer?

Prior to the pandemic the cost per ‘point’ of methamphetamine typically ranged between $17.50 – $50.00.

A point is slang for .1 gram of the drug.

Up until the start of the pandemic the price of a point of methamphetamine had continued to remain steady in the preceding decade, ranging from $50 to $200.

The median price in 2018 was $75.

These average costs were based on the self-reports of clients of drug and health services and  police detainees.

Price increases

The AIC report found that the price of .1 of a gram of methamphetamine  had risen to as high as $250 in some locations.

This was based on the self-reports of police detainees.

In many major cities this represented a severalfold increase to previous average prices.

How is methamphetamine smuggled into Australia?

The most commonly detected means of methamphetamine entering Australia is by way of mail.

According to the last published Illicit Drug Data report published in 2020 by the Australian Criminal Intelligence Commission, over 80% of Amphetamine-type stimulants (a group of stimulants which includes methamphetamine) enter Australia this way.

The study also reported that air cargo accounts for around 12% of detections, with air passenger (2%) and sea cargo (less than 1%) being the least means of detection.

Sea cargo, however, accounted for the greatest proportion of detections by weight.

Which countries does it come from?

Thailand has been identified as the primary embarkation point for methamphetamine traffickers to Australia.

Other countries identified include Mexico, the USA, Singapore, Canada, Malaysia, Laos, Germany, India and China.

Population use of methamphetamine in Australia

To get the best picture of the consumption of methamphetamine in Australia requires an analysis of data from waste water and the self-reports of drug users.

The National Wastewater Drug Monitoring Program (NWDMP) collects wastewater form major cities and regional sites across Australia on a regular basis.

According to their data and the substances they monitor methamphetamine is the most consumed illicit drug by a sizeable  measure.

ACIC estimates that in 2020 over 11 tonnes of methamphetamine was consumed in Australia.

The Australian Needle and Syringe Program Survey (ANSPS)  reports that from 1994 to 2014 methamphetamine had overtaken heroin as the most commonly reported drug last injected by intravenous drug users.

In Australia cannabis is the most commonly used illicit drug, followed by cocaine.

In 2019 a national survey released that around 3.4 million Australians reported using an illicit drug in the previous 12 months.

How is methamphetamine produced?

The manufacture of methamphetamine is illegal in Australia.  However, the manufacture of the drug is not difficult and is relatively easy to produce.

There are numerous websites online which outline its production. This makes the private manufacture of the drug all the more easier. Indeed the vast majority of detected illegal laboratories are small scale and addict-based.

The ingredients to produce the drug include many over-the-counter medicines, including ephedrine and pseudoephedrine. These can be found in common medications used to treat colds and weight loss.

Typically the manufacturing of Methamphetamine involves:

In most cases ephedrine or pseudoephedrine is mixed with water and then a solvent, like gasoline, is added. Methamphetamine is then extracted. The mixture is heated such that it then crystallises.

Because there is no quality control associated with the private production of methamphetamine, the manufacturing of the drug can involve use of various toxic materials in this process, which can result in serious detrimental effects on the user.

Domestic Clandestine Laboratories

Methamphetamine remains the dominant drug produced in clandestine laboratories which are detected nationally across Australia.

These labs are used to produce illicit drugs.

They can range in their sophistication from small scale set-ups to larger more sophisticated operations on an industrial scale.

Over the last decade, however, the number of clandestine laboratories that produce methamphetamine that have been detected nationally has decreased by over 70%.

The majority of these detected laboratories are small scale in nature (addict-based) and are located in residential address areas.

Purity and Availability

For the past decade the purity of methamphetamine has remained consistently low, ranging from between 1 per cent and 78%.

A national survey conducted in 2019 amongst people who regularly inject drugs, 95% respondents reported that crystal methamphetamine was ‘very easy’ to get.

Police Arrests

In the period 2018-2019 there were over 45,000 arrests in relation to Amphetamine-type stimulants.

88% of those arrested were consumers.

Harm Reduction and Drug Testing

A drug testing kit can provide information on the presence and purity of a drug.

In Australia the availability of these testing kits is a hot topic, especially at music festivals.

There are a range of companies online who can provide this technology.

Six teenagers have been charged with murder following the death of a 16-year-old boy in Doonside last week.

The boy died after allegedly being brutally bashed by 6 teenagers in a housing commission residence in the area of Doonside in Western Sydney.

The police allege that the offenders each had their turn stomping, jumping and punching him.

The assault was recorded on mobile phones and displayed all over social media, however was later taken down due to its graphic nature.

The boy was found unresponsive on August 4, and died 3 days later in Westmead Hospital.

According to Police, he sustained injuries and blunt force trauma to his head, chest and body, as well as swelling on the brain and collapsed lungs.

It was alleged that the assault began due to the child’s postcode gang affiliation and a pair of earphones that went missing from the home of 19 year old woman, who was one of the participants in the assault.

The other offenders were two 13-year-old boys, a 14-year-old boy, a 15-year-old boy, and a 15-year-old girl.

Each of them have been charged with murder.

The four boys and the 15-year-old girl were also charged with the offences of causing grievous bodily harm to a person with intent and detaining in company with intent to get advantage occasioning actual bodily harm.

All children appeared in the children’s court but were refused bail.

What is the age of Criminal Responsibility in Australia?

The accused teenagers, all except for the 19 year old woman, are under the age of 18 and therefore will be treated under the law as children.

Children are subject to different charges and sentences to adults for criminal matters.

In all Australian jurisdictions, the age of criminal responsibility is 10 years old.

This means that no child below the age of 10 can be arrested, summonsed or found guilty of a criminal offence.

All teenagers convicted for the assault of the 16-year-old boy are above the age of 10, therefore are able to be found guilty of any type of criminal offence.

What is the law that governs the Age of Criminal Responsibility in Australia?

Australia’s age of criminal responsibility is governed by section 5 of the Children (Criminal Proceedings) Act 1987.

This contains the rule pertaining to the age of criminal responsibility in all Australian jurisdictions, being stipulated as 10 years of age.

This statutory presumption is irrebuttable and cannot be challenged.

Doli incapax

This age is derived from the long-standing common-law doctrine of ‘Doli incapax’ which presumes that a child between the ages of 10 and 14 cannot commit a crime because he or she does not understand the difference between right and wrong.

However, unlike the statutory presumption, the common law presumption is not absolute, and can therefore be reputed.

R v CRH (1996) isthe leading case in NSW which affirms the common law existence of Doli incapax. Newman J sets out the test for rebutting doli incapax, relying on the House of Lords L Decision C v DPP [1995] which provides the five elements of this test:

  1. The prosecution must rebut the presumption of doli incapax as an element of the prosecution case.
  2. The child knew the act was seriously wrong as opposed to naughty.
  3. The evidence relied upon by the prosecution must be strong and clear beyond all doubt or contradiction.
  4. The evidence to prove the accused’s guilty knowledge, as defined above, must not be the mere proof of doing the act charged, however, horrifying or obviously wrong the act may be.
  5. The older the child is, the easier it will be for the prosecution to prove guilty knowledge.

Origins of the Age of Criminal Responsibility in Australia

Due to Australia’s colonisation in 1788, the English common law in existence at the time was applicable to the colony of New South Wales.

As a result, the age of criminal responsibility in English common law became the law in Australian colonies.

The formation of the Commonwealth of Australia in 1901 meant that laws relating to the age of criminal responsibility can now be determined by each state and territory.

All states, however, follow the same age of criminal responsibility, which is as conferred upon by statute.

The UK position is currently that the age of criminal responsibility is 10 years of age, and prior to 1998, the doli incapax doctrine also existed in England.

However, it was the Bulgar case, involving the brutal bashing and murder of a 2-year-old boy, James Bulgar, by two ten-year-old boys that lead to the abolition of doli incapax in England.

Although doli incapax had not yet been abolished, both boys were deemed to know right from wrong and were therefore prosecuted.

Whilst the boys were still sentenced to imprisonment for the murder of Bulgar, psychiatrists assessing the boys contended that they were at a “less mature psychological or emotional age” to be completely aware of the seriousness of the crime they committed.

England has removed doli incapax, meaning that the prosecution is not able to dispute the age of criminal responsibility, despite being able to prove that the accused child was able to distinguish between right from wrong.

In Australia however, the doli incapax doctrine still exists and the right to rebuttal is affirmed by common law principles. 

Why does Australia prefer a low age of criminal responsibility? 

In keeping the age of criminal responsibility at 10 years of age, some are of the view that Australia’s development of specialized institutions and processes for dealing with young offenders is focused on rehabilitative measures such as child welfare and reform policies on retributive concerns.

The Australian Institute of Criminology has continually published quarterly statistics on numbers and rates of juveniles in corrective institutions.

Australian Criminologists Carlos Carcach and Glenn Muscat assert that the criminal justice system has been primarily focused on rehabilitation and prevention of further offending, rather than simple punishment. 

They also believe that a low age of criminal responsibility means that young child offenders, especially of serious crimes, can be punished adequately as they will be held legally accountable.     

Criticism of Raising Australia’s age of criminal liability by International Organizations

Australia’s age of criminal responsibility has gained much international controversy and considerable criticism by the United Nations Committee, who are critical of jurisdictions in which the minimum age is less than 12 years old.

In other countries such as Japan, Portugal and Spain, it is 16 years old, whilst in Austria, Germany and many other European countries, it is 14 years old.

In Scotland however, virtually no child below 16 years of age who has committed an offence has been prosecuted in criminal courts.

In other countries, the children charged for the assault of the 16-year-old boy in Doonside would have just reached the age of criminal responsibility, meaning they would be able to be convicted for murder.

However, because they were just above the age of criminal responsibility in these other jurisdictions, such as across Europe, where the age is 14, the courts would be much more lenient than in Australian jurisdictions.

Very recently, during Australia’s United Nations Universal Periodic Review, the UN Committee, in support of 31 other UN member states, urged Australia to increase the age of criminal responsibility to 14 years of age.

Amnesty International have also campaigned for this, expressing that children imprisoned at a formative age will suffer great emotional harm and this will inflict lasting damage upon the wellbeing of a child.

Child Development experts from the University of New South Wales conducted a report into the effects of incarceration on young offenders, finding that imprisonment crucially affects their development.

The Researchers found that it increases children’s risks of depression, suicide and self-harm, leads to poor emotional development and results in poor education outcomes.

In 2019, the Council of the Attorney’s General (CAG) established a review into this issue, but currently no reforms have been made.

In February 2020, the Australian Human Rights Commission also made recommendations for Australia to raise the age of criminal responsibility to 14 years of age.

The AHRC reports that most child offenders have disadvantaged backgrounds and complex needs, that younger cohorts commit less serious offences, and that detention has had an adverse impact on children.

They also concluded that Aboriginal and Torres Strait Islander children especially are overrepresented in the younger youth justice and that in order to comply with our international human rights obligations,

Australia’s age of criminal responsibility should be in line with other countries.

Conclusion

Australia still remains one of the only nations left with one of the lowest ages of criminal responsibility in the world.

Whilst currently all states and territories in Australia follow the Commonwealth legal age of criminal responsibility, there has been a demand for states to adopt their own age of criminal responsibility.

In the above matter which involved the murder of the 16 year old boy by six other teenage children, these children were not able to escape legal accountability despite being youth offenders.

Australia has been pressured by international organisations, especially the United Nations who believe that Australia, being signatory to the CROC, have a legal implication to raise the age of criminal liability.

Since the 2019 inquiry into this made by the Attorney General, there have still not been changes made but this may change in the future.

If you have any further questions please contact the author who is a Lawyer in Newcastle New South Wales.